The U.S. Department of Justice has added language condemning the Insular Cases to the latest edition of the Justice Manual. The section on “Applicability of Constitutional Provisions to U.S. Territories” now says this:
“In past filings, the Department has recognized that the Insular Cases contain reasoning and rhetoric that are “obviously anathema,”[Footnote 1] and “indefensible and discredited,”[Footnote 2] and that they invoke “racist stereotypes” that are “indefensible and repugnant.”[Footnote 3] Consistent with these statements, it is the Department’s view that the racist language and logic of the Insular Cases deserve no place in our law.”
What are the Insular Cases?
The Insular Cases are a series of Supreme Court decisions about the island territories of the United States, all of which were decided more than a century ago. “Insular” means “about islands” so these were the cases about the new island territories acquired by the United States at the end of the 19th century, including Puerto Rico.
The insular cases established the idea of unincorporated territories, which could continue as territories indefinitely. These cases also established the idea that the U.S. Constitution does not apply fully to the island territories. The decisions in these cases, written in the early decades of the 20th century, include offensive, racist language that reflects the attitudes many people held at the time. Statements about “savage tribes” and “alien races” suggested that people living in the territories were not capable of understanding “the administration of government and justice according to Anglo-Saxon principles.”
What is the Justice Manual?
The Justice Manual is the official public statement of the DOJ’s policies and procedures. It is prepared and kept up to date under the supervision of the Attorney General and direction of the Deputy Attorney General. It is not a list of U.S. laws, it explains, but is the internal policy guide for the DOJ.
So the statement about the Insular cases is followed by instructions: “Department litigators can and should include similar statements, as appropriate, in filings addressing the Insular Cases.”
The new section of the Justice Manual also instructs DOJ lawyers to let the Office of the Associate Attorney General know as early as possible when they are involved in a case that will bring up questions of how the U.S. Constitution applies to territories.
Now what?
Pasquines US reports that Neil Weare, of Right to Democracy, We the People Project, and Equally American lobbying projects, responded with, “We look forward to testing DOJ’s new policy guidance on the Insular Cases through a series of new cases we will file in the coming months to challenge the continued denial of democracy and self-determination in US territories.”
Tina Barnes, Speaker of the Legislature in Guam, describes the actions of the DOJ as “symbolic.” Muna Barnes said the DOJ’s latest decision puts its lawyers in an awkward position when faced with legal cases affecting U.S. territories: “On one hand,” she says, “they will condemn the Insular Cases for its use of ‘repugnant’ language, while on the other hand rely on these same cases to argue the Constitution only applies ‘in part’ to territories.”
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